Here's a fun article from Emma Johnson at Forbes.
Debra Hamilton is a pet mediator based in New York. The article may provide ADR practitioners with some ideas for their business, including marketing and going "super-niche."
Barbara Reeves recently published "There Are No Do-Overs in Mediation" at Law.com. In her article, Reeves encourages counsel to prepare for a mediation because the market no longer allows the luxury of a lengthy mediation. Because of the prevalence of half-day (or shorter) mediations, counsel needs to spend time with their clients before the mediation, inoculating them against anticipated offers, thinking about how to respond to offers, using decision trees, and considering remedies and benefits that a court cannot order.
In Asignacion v. Rickmers Genoa Schiffahrtsgesellschaft MBH &
CIE, KG, the United States Court of Appeals for the Fifth Circuit examined
whether the district court correctly refused to enforce a Philippine arbitral
award pursuant to the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards and the prospective-waiver doctrine. Asignacion filed suit in
Louisiana state court to recover for personal injuries with Rickmers seeking an
exception to enforce the arbitration clause in the contract it had with
Asignacion. The state court granted the exception, stayed litigation, and
ordered arbitration in the Philippines.
At arbitration, the arbitrators found that Asignacion had the
lowest grade of compensable disability and awarded $1,870. Asignacion then
filed a motion in Louisiana state court asking Rickmers to show cause why the
Philippine arbitral award should not be set aside for violating United States
public policy. That suit was removed to federal court by Rickmers. The t ...
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In Mega Builders, Inc. v. Paramount Stores, Inc., the trial court denied Mega Builder's motion to modify an arbitration award because of an alleged error by the arbitrator in calculating the amounts owed, failing to award pre-judgment interest, and refusing to award attorney's fees. The Fourteenth Court of Appeals affirmed the trial court's decision.
Reviewing the Texas General Arbitration Act, the Court of Appeals held that the arbitrator did not make an award based upon an "evident miscalculation of numbers". An evident miscalculation of figures must be clear, concise, and conclusive from the record. Here, the court determined that the award does not reflect an obvious mathematical miscalculation and because there was no record of the arbitration proceedings before the Court of Appeals, it could not determine if the calculation was intentional or not. Additionally, the Fourteenth Court of Appeals held that the arbitrator did not exceed her authority when she refused to award pre-judgment interest ...
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The Fourteenth District Court of Appeals
issued its decision in In re Valerus Compression Services, LP
, holding that the trial court abused its discretion when it granted a Rule 202 petition (to investigate potential claims) without ruling on a motion to compel arbitration. In its decision, the Court held that mandamus is the appropriate proceeding to review a trial court's order deferring ruling on a motion to compel arbitration and a trial court cannot defer its ruling on the issue of arbitrability until a Rule 202 deposition had been taken. The majority opinion cites to In re Bill Heard Chevrolet
, acknowledging that the concurring opinion
in In re Valerus Compression Services, LP "raises a valid argument as to why this court should consider its decision in In re Bill Heard Chevrolet." The concurring opinion states that a Rule 202 trial court does not have jurisdiction to rule on a motion to compel arbitration.
with Sheppard Mullin Richter & Hampton
a May 11, 2015 opinion
by the Seventh Circuit Court of Appeals. That court reversed an order denying a motion to compel arbitration in a Telephone Consumer Protection Act
class action suit. The Seventh Circuit held that the agreement was broad enough to apply to conduct that occurred after the termination of the agreement. According to Ramsey, "Sprint argued, and the Seventh Circuit agreed, that arbitration clauses still apply to conduct occurring after termination of an agreement so long as the conduct had its 'genesis' in the agreement. In this case, the Seventh Circuit found an 'intimate relation' between Sprint's phone callas and the parties' agreement."
In KNJ Enterprises, Inc. v. Wilbanks & Wilbanks, PC, the Fourteenth Court of Appeals held that a trial court did not err when it confirmed an arbitration award when one of the parties did not appear at the arbitration.
Wilbanks initiated an arbitration proceeding against KNJ. According to the opinion, despite receiving notice of the proceeding, KNJ did not appear. KNJ initiated its own arbitration proceeding against Wilbanks, which was enjoined from proceeding by the trial court because of Wilbanks' pending arbitration. Ultimately, the trial court entered an award in favor of Wilbanks. KNJ appealed, arguing that the trial court erred because KNJ's claims could not have been heard when KNJ did not appear at the arbitration.
The Court of Appeals rejected KNJ's argument, holding that the arbitrator determined KNJ received proper notice of the arbitration and that KNJ could not prevent the consideration of its claims be opting not to participate in an arbitration proceeding of which it had notice.
H/T to R ...
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In City of San Antonio v. Cortes, the San Antonio Court of Appeals held that the trial court should have compelled arbitration pursuant to a collective bargaining agreement, and because a decision between a union and the City of San Antonio prevented the relitigation of a dispute between a union member and the city.
Cortes, a San Antonio firefighter, alleged that the City breached the collective bargaining agreement relating to health benefits and brought suit. The City argued that the dispute should be sent to arbitration. The City's motion to compel arbitration was denied, resulting in the City filing an interlocutory appeal.
The Court of Appeals provides an analysis of reviewing an arbitration agreement and whether the claim brought by Cortes, which is, according to the Court, "identical" to the claims brought by the firefighter's union against the City.
H/T to Ronnie Hornberger for notifying us of this decision.
Gary McGowan is a noted arbitrator and mediator based in Houston, but with a national and international presence. Gary is scheduled to join the State Bar of Texas ADR Section Council as a councilmember this summer.
Gary's written an article, "Don't Call It a Trial: What Litigators Should Know about Arbitration" which was published in The Houston Lawyer. The article describes itself as a primer on arbitration, providing definitions of terms, the importance of the arbitration contract, and outlining arbitration procedures. You can find the article here.
Thanks to Gary for this article and we're looking forward to his service on the council.
In Campbell Harrison & Dagley, LLP v. Hill
, the Fifth Circuit Court of Appeals analyzed the trial court's order that vacated most of an arbitration award. The arbitrators awarded the law firms their fees, based upon a hybrid hourly-rate fee (approximately $3.15 million) and a contingency fee (approximately $25 million). The district court vacated the arbitrators' award of the contingency fee, which was challenged on appeal to the Fifth Circuit. The Fifth Circuit Court of Appeals examined the Texas General Arbitration Act, as well as Hill's claim that the contingency award was unconscionable. Concluding that the district court substituted its judgment for that of the arbitrators, the Fifth Circuit upheld the hourly-rate fee and reversed and rendered the contingency fee award in favor of the law firms.